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Madhavprasad Kalkaprasad Nigam Vs. S.G. Chandavarkar - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 15 of 1948 and Suit No. 835 of 1947
Judge
Reported inAIR1949Bom4104; (1948)50BOMLR747
AppellantMadhavprasad Kalkaprasad Nigam
RespondentS.G. Chandavarkar
DispositionAppeal allowed
Excerpt:
.....vii, section 48 - ejectment order-whether such order passed by presidency small cause court is 'decree'-'suit'-civil procedure code (act v of 1908), section 2(2) order xxi, rule 103-indian limitation act (ix of 1908), articles 11a, 120 and 144.;a proceeding taken in a presidency small cause court under chap. vii of the presidency small cause courts act, 1882, to eject a tenant is not a 'suit,' nor is an order for ejectment passed in such a proceeding a 'decree,' as defined in section 2(2) of the civil procedure code, 1908.;hyder ali v. aminuddin [1929] a.i.r. mad. 69, ramkrishna v. haji dawood (1907) i.l.r. 31 bom. 259 : s.c. 9 bom. l.r. 208, framroz dossabhai v. dalsukhbhai fulchand (1920) i.l.r. 45 bom. 972 s.c. 29 bom. l.r. 383, and bai meherbai v. pherozshaw sorabji (1927) i.l.r...........to law.bhagwati, j.6. two questions arise for our determination in this appeal: (1) whether the suit is a suit under order xxi, rule 103, civil procedure code, and (2) whether article 11a of the indian limitation act applies to this suit.7. the proceedings were initiated under chapter vii of the presidency small cause courts act for recovery of possession of immovable property. they terminated so far as the small cause court was concerned by an order passed in favour of the defendant on december 10, 1945. a civil revision application was filed against that order on december 22, 1945, which application was dismissed on february 17, 1947. this suit was filed on march 29, 1947, asking for a declaration that the plaintiff was a tenant in respect of the suit premises and as such tenant.....
Judgment:

M.C. Chagla, C.J.

1. This appeal raises a very short point of limitation. On May 4, 1945, an order was passed by the Small Cause Court in proceedings instituted by the defendant against A.A. Patil and this was an order for ejectment against Patil. Time was given to Patil to vacate by May 14, 1945, and a warrant of possession was issued on May 18, 1945, and when the defendant attempted to execute the warrant of possession, he was obstructed by the plaintiff. On May 22, 1945, the defendant took out an obstructionists notice, and on December 10, 1945, the notice was made absolute in favour of the defendant. From that order the plaintiff came to this Court in revision, and this Court dismissed the revisional application on February 17, 1947. The plaintiff then filed this suit on March 29, 1947, for a declaration that he was the tenant of the defendant and that as such tenant he was entitled to remain in possession of the shop. He also sought for a declaration that the defendant was not entitled to execute the warrant of possession which he had obtained from the Small Cause Court. Mr. Justice Tendolkar, before whom the suit came, tried the preliminary issue with regard to limitation, and as he came to the conclusion that the plaintiff's suit was barred, he dismissed the plaintiff's suit. The plaintiff has come to us in appeal from that decision.

2. The view that the learned Judge took was that the order passed by the Small Cause Court on December 10, 1945, was an order under Order XXI, Rule 103, Civil Procedure Code, and the suit was barred under Article 11A of the Indian Limitation Act, because it was not filed within a year of the passing of that order. Now, with very great respect to the learned Judge, the whole of his judgment proceeds on the assumption that the proceedings instituted by the defendant in the Small Cause Court were a suit and the order that he obtained on May 4, 1945, was a decree. As we shall presently point out, this assumption, which underlies the judgment, is fallacious and, therefore the conclusion to which the learned Judge arrived at is not correct. The Small Cause Court has no jurisdiction to try suits affecting immovable property, but under Chapter VII of the Presidency Small Cause Courts Act, the Small Cause Court has been given a special jurisdiction to pass orders for ejectment. Under Section 41 when a tenancy has been terminated and when the rent does not exceed Rs. 2,000, a landlord may obtain a summons against his tenant to show cause why possession should not be handed over to him, and under Section 43 the Small Cause Court may make an order in favour of the landlord ordering possession against his tenant. Under Section 48 the Code of Civil Procedure is made applicable to all proceedings under Chapter VII, and under Section 49 it is expressly enacted that the recovery of the possession of any immovable property under Chapter VII should be no bar to the institution of the suit in the High Court for trying the title thereto. Looking to the scheme of the Small Cause Courts Act and of Chapter VII it is clear that the proceedings taken by the defendant in order to eject his tenant were not a suit and the order that he obtained from the Small Cause Court for ejectment was not a decree.

3. Mr. Laud has attempted to argue that as the order of the Small Cause Court was a final adjudication with regard to the party's rights, that adjudication must be looked upon as a decree. We are unable to accept that view. If one turns to the definition of a decree under the Civil Procedure Code, Section 2(2), decree is defined as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Therefore, a party's rights must be determined not in any proceedings but in a suit, before the result of the suit or the determination of the rights can become a decree. Mr. Laud relies upon various statutory provisions where a Court is enabled to pass a decree in certain proceedings. But those are, what one might call, statutory suits and statutory decrees and there is no provision in the Small Cause Courts Act itself which makes the order of ejectment under Section 43 a decree. It is perfectly clear, if one looks to the Civil Procedure Code, that the order passed by the Small Cause Court is not a decree. That is the view taken of the ejectment order by the Madras High Court in Hyder Ali v. Amirudin A.I.R. [1929] Mad. 69 That is also the view of our High Court as given expression to in three decisions : Ramkrishna v. Haji Dawood I.L.R. [1907] Bom. 259 : 9 Bom. L.R. 208; Framroz Dosabhai v. Dalsukhbhai Fulchand I.L.R. (1920) Bom. 972 : 23 Bom. L.R. 383 and Bai Meherbai v. Pherozshaw Sorabji I.L.R. (1927) Bom. 885 : 29 Bom. L.R.1220 In Ramkrishna v. Haji Dawood the divisional bench consisting of Sir Lawrence Jenkins, Chief Justice, and Mr. Justice Beaman, took the view that the proceedings in the Small Cause Court did not result in a decree, and in Framroz Dosabhai v. Dalsukhbhai Fulchand and Bai Meherbai v. Pherozshaw Sorabji, the divisional benches also of this Court took the view that the proceedings under Chapter VII were not suits. If, therefore, the order of ejectment is not a decree, then the question is which, is the article of the Indian Limitation Act which is applicable. The learned Judge took the view that the suit was barred under Article 11A.

4. Now, turning to Article 11A it is clear that that applies to a suit filed by a person against whom an order is made for giving up possession to the holder of a decree. It cannot be said in this case that the plaintiff has filed this suit against the defendant, who has obtained possession from him under a decree. Order XXI, Rule 103, makes it clear that the procedure under Rules 97 to 103 of that Order are all in the nature of a summary procedure, and Rule 103 makes the order passed by the Court on an obstructionists notice conclusive subject to the result of any suit which a person affected by that order may file, and when the proceedings under Order XXI relate to the resistance to delivery of possession to a decree holder, then undoubtedly under Article 11A the suit is to be filed within a year from the date of the order. But in this case the resistance to delivery of possession by the plaintiff is not to a decree holder but to one who has obtained an order of possession passed by the Small Cause Court, and it is only by reason of Section 48 that Rules 97 to 103 of the Civil Procedure Code are made applicable to the obstructionists notice taken out by the defendant against the plaintiff. But while the provisions of the Code are made applicable, it cannot be said that Article 11A has also been made applicable to the case of a person obtaining an order from the Small Cause Court. It is an elementary principle of construction that the scope of the Limitation Act cannot be extended by implication, and a party's right to come to Court cannot be taken away unless the Limitation Act expressly provides that his right is so barred, and strictly construing Article 11A of the Indian Limitation Act, it is clear that it is only in the case of proceedings taken under a decree that Article 11A would apply. If, therefore, Article 11A does not apply, then this being a suit for a declaration either Article 120 or Article 144 would apply and it is not disputed that in that case the plaintiff's suit would be within time. This view is in accord with the Madras decision to which I have already referred (Hyder Ali v. Amirudin).

5. In my opinion, therefore, the learned Judge was wrong in coming to the conclusion that the plaintiff's suit was barred. We would, therefore, allow the appeal, set aside the order of dismissal passed by the learned Judge and remand the suit for disposal according to law.

Bhagwati, J.

6. Two questions arise for our determination in this appeal: (1) Whether the suit is a suit under Order XXI, Rule 103, Civil Procedure Code, and (2) whether Article 11A of the Indian Limitation Act applies to this suit.

7. The proceedings were initiated under Chapter VII of the Presidency Small Cause Courts Act for recovery of possession of immovable property. They terminated so far as the Small Cause Court was concerned by an order passed in favour of the defendant on December 10, 1945. A civil revision application was filed against that order on December 22, 1945, which application was dismissed on February 17, 1947. This suit was filed on March 29, 1947, asking for a declaration that the plaintiff was a tenant in respect of the suit premises and as such tenant entitled to remain in possession thereof. So far as proceedings under Chapter VII of the Presidency Small Causes Courts Act are concerned, it has been held that they are neither a suit, nor an order passed as a result thereof a decree within the meaning of Section 2(2) of the Civil Procedure Code. They are merely proceedings which are initiated in the Small Cause Court by virtue of the provisions of Chapter VII thereof, and the best that can be said with regard to the same is that the result of these proceedings is an order in favour of the party who obtains the same in his favour. The proceedings are not a suit, the order is not a decree, and it is too late in the day now to contend, in view of the various decisions of our High Court, which are reported in Ramkrishna v. Haji Dawood I.L.R. (1907) Bom. 259 : 9 Bom. L.R. 208 Framroz Dosahhai v. Dalsukhbhai Fulchand I.L.R. (1920) Bom. 972 : 23 Bom. L.R. 383 and Bai Meherbai v. Pherozshaw Sorabji I.L.R. (1927) Bom. 885 : 29 Bom. L.R. 1220 that these proceedings are a suit and the order made therein is a decree. Section 48 of the Presidency Small Cause Courts Act provides that in all proceedings under Chapter VII the Small Cause Court shall, as far as may be and except as therein otherwise provided, follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure, and it is by virtue of this provision in Section 48 of the Act that the provisions of the Civil Procedure Code contained in Order XXI, Rules 97 to 103, are made applicable to these proceedings. If these provisions contained in Order XXI, Rules 97 to 103, are thus made applicable, it is clear in my opinion that the results which are laid down in Rule 103 also do follow, that is, the order made under these proceedings is conclusive, save for any suit which may be filed within the meaning of Rule 103 itself. That is the suit which was filed by the plaintiff in order to have a declaration of his title in his favour, and it is clear therefore that this suit was a suit contemplated by and within the provisions of Order XXI, Rule 103, of the Civil Procedure Code.

8. The next point, therefore, to determine is whether Article HA of the Indian Limitation Act would apply to the suit as filed. Curiously enough, when the matter came to be argued before the learned trial Judge, counsel on behalf of both the parties assumed that Article 11A applied, as appears from this passage from the judgment of the learned Judge himself:

There is no dispute that the period of limitation applicable would be, under article 11A of the Schedule to the Limitation Act, one year from the date of the order.

The only way in which the plaintiff wanted to get out of the bar of limitation was by arguing that the period which was taken up in the disposal of the civil revision application, which was filed on December 22, 1945, and was disposed of on February 17, 1947, should be excluded under Section 14 of the Indian Limitation Act. That contention was negatived by the learned trial Judge following a decision of Mr. Justice Patkar in Narayan v. Hari : AIR1930Bom505 . That was the only contention which was urged before the learned trial Judge, and when the matter came to be argued by the appellant before us, the contention which was taken up by the appellant was that Article 11A of the Indian Limitation Act did not apply at all. No doubt, it being a point of law it is open to the appellant to urge the same. The fact, however, remains and it will be relevant when we come to decide the question of the costs that no such contention was raised by the appellant before the learned trial Judge.

9. Considering, therefore, this aspect of the question, we have got to consider how far the terms of Article 11A of the Indian Limitation Act apply to the suit before us. Article 11A prescribes the period of limitation in respect of a suit by a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an application by the holder of a decree for possession of immovable property, and the period of limitation prescribed is one year from the date of the order. It is an essential pre-requisite to the application of this Article 11A that the order must have been made upon an application by the holder of a decree for possession of immovable property. We have got, therefore, to come to the conclusion, before the application of this Article 11A can be attracted, that the defendant in this case was a holder of a decree for possession of immovable property, but as I have pointed out before, the proceedings which were initiated in the Small Cause Court were neither a suit nor was the order a decree. If that was so, it could not be said that the defendant was the holder of a decree for possession of immovable property, and if he was not such holder of a decree, it could not be urged that the plaintiff was a person against whom an order had been made under the Code of Civil Procedure upon an application by the holder of a decree for possession of immovable property within the meaning of that article. Mr. Laud urged that the order which was made as a result of the proceedings initiated in the Small Cause Court was executable as a decree, if not a decree in terms of the definition thereof in Section 2(2) of the Civil Procedure Code. Even there the argument does not help the appellant at all. The terms of the Indian Limitation Act cannot be extended in this manner. The provisions have trot to be strictly construed, and unless the defendant comes within the description of the holder of a decree for possession of immovable property, Article 11A cannot help the appellant at all. The case which was cited by Mr. Purshottam for the appellant, Hyder Ali v. Amiruddin A.I.R. [1929] Mad.69 is a case on all fours with the present one, and I need not dilate any more on the propositions which have been laid down therein, except to say that we are in perfect accord with the reasoning of that decision. Following the reasoning of that decision it is clear that the present suit is not a suit which is covered by Article 11A of the Indian Limitation Act. If at all it would fall within Article 120 or Article 144 as the case may be, in which case the suit which is filed is clearly within time.

10. For the reasons above stated, therefore, I agree with the order proposed by my Lord the Chief Justice.

Chagla, C.J.

11. As Mr. Purshottam has succeeded on a point which was not urged before the trial Court and which does not even find a place in the memo of appeal here, we think the fairest order to make with regard to the costs would be that the costs of the appeal and the costs of the hearing will be costs in the cause.


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